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Univ. of San Diego School of Law

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Sunday, August 10, 2008

DNA not kept in half of states

Half the states lack requirements to preserve DNA evidence, despite a series of dramatic exonerations based on the critical biological material.

Supporters of retaining DNA evidence point to a growing list of wrongly convicted prisoners who have been freed. But some prosecutors and lawmakers cite concerns ranging from cost to expanding DNA collections from individuals who have never been convicted of crimes.

Evidence preservation has been the key to freeing more than 200 wrongfully convicted prisoners, says the Innocence Project, a group that works to free the innocent based on DNA testing.

Preserving DNA also has helped secure convictions. "We're becoming more successful in identifying perpetrators in cold cases than we were when we didn't have this technology," says Scott Storey, district attorney in Jefferson County, Colo.

There is disagreement over how long and under what conditions to keep DNA. Storage space and extra costs are key issues. "I don't know if there is enough room to keep all of this evidence," Storey says. "I believe in the innocence movement, but you've got to have some common sense injected."

What states are doing:

• South Carolina Gov. Mark Sanford vetoed a proposal last month that, in part, would have mandated preservation of biological evidence. He says he supports giving the "wrongly accused a chance to clear their names" but could not endorse a provision requiring all suspects charged with felonies — but not yet convicted — to provide genetic profiles.

• A similar proposal in New York, one of the largest states that do not require DNA preservation, died in the State Assembly in June.

• Colorado prosecutors and defense lawyers are grappling to implement a broad law that requires law enforcement agencies to keep DNA evidence in murder, sexual assault and other serious cases for the lifetime of convicted defendants. It also calls for keeping DNA evidence in less serious crimes.

• Arizona lawmakers approved legislation, which takes effect Dec. 31, to maintain biological evidence in murder and sexual assault cases for as long as the offender remains in prison.

Larry Pozner, former head of the National Association of Criminal Defense Lawyers, says states have shown a "shocking" disinterest in keeping DNA: "Innocent inmates are going to die in prison." [Mark Godsey]

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